Freedom of thought, conscience and religion

This page presents an introduction to and analysis of the dilemma. It does so through the integration of real-world scenarios and case studies, examination of emerging economy contexts and exploration of the specific business risks posed by the dilemma. It also suggests a range of actions that responsible companies can take in order to manage and mitigate those risks.

"How can a global multi-national realistically respect
freedom of religion or belief of employees on an equal basis, irrespective of
location or context?"

The dilemma for responsible business is how to ensure that the
religious rights of employees are best respected in the context of dynamic
multi-cultural workforces and operating environments, where companies' ability
to achieve de facto equality among employees is limited in certain locations by,
for example, obstructions of a legal, cultural or political nature.

Likewise, companies can also face challenges in terms of
conflicts between the religious rights claimed by members of different groups.
Similarly, certain religious rights may conflict with other categories of human
rights (see below for further details).

Religion in the workplace

According to the UN Global Compact and UN Alliance of
Civilizations, religion in the workplace is becoming an increasingly important
issue for companies, driven by:

Demographics: "Increasing levels of migration, much of it
to seek work opportunities, are bringing religious diversity to societies
that might previously have had a sense of religious homogeneity"

The increased role of religion in public life: The
increasing role of religion in public life means "religious inclusiveness
is becoming a growing factor in employee recruitment, retention,
productivity and satisfaction"

Globalisation of operations: This is creating situations
in which "corporate employee policies and practices developed in the
religious context of the company's home market (e.g. with regard to gender
equality or holiday schedules) might run contrary to religious
requirements in other markets"

The Internet and outsourcing: This is "increasingly
connecting employees with shared, including religious, interests globally"1

For the purposes of this particular dilemma, the
globalisation of operations (i.e. through the expansion by multi-national
corporations into a range of emerging markets) is a particularly salient
factor. Nonetheless, this dilemma also poses a challenge for businesses that
have significant numbers of employees who have relocated from one location –
with divergent religious norms – to another (i.e. migrant workers and
expatriates). As a result, the dilemma goes beyond issues of emerging market
contexts. It is likely to arise, for example, in any location where MNCs'
employees find themselves working amongst colleagues – or living amongst
community members – with backgrounds, cultures and beliefs that differ from
their own.

Religious rights

For the purposes of this dilemma ‘freedom of religion or
belief' is interpreted as incorporating the following issues:

Freedom from discrimination based on religion or belief: The
effective protection of employees from religious discrimination
necessitates that one's religious convictions are not a determining factor
in workplace decision making, related to among other things, hiring,
discipline, advancement and redundancy

Freedom of thought, conscience and religion or belief:
This facet of the dilemma involves the reasonable accommodation of freedom
of religion or belief of their employees, in a manner that is compatible
with the given operating context. This might include, for example,
flexibility related to dress, scheduling and grooming habits.

According to General
Comment 22 on Article 18 of the International Convention on Civil and
Political Rights (ICCPR) by the UN Human Rights Committee, there is a critical
distinction to be made between the right to freedom of thought, conscience and
religion and the right to manifest religion or belief. International human
rights law frames the freedom of thought, conscience and religion in a
profound, far-reaching manner from which no derogation is permitted. This is
distinct from the freedom to manifest a religion or belief, which is broadly construed
but can be restricted if limitations are prescribed by law and are necessary to
protect public safety, order, health or morals, or the fundamental rights and
freedoms of others.

The relationship between non-discrimination versus
freedom of religion or belief

It is important to state at the outset that companies should
place particular focus on promoting non-discrimination when addressing religion
or belief in the workplace. In part, this is because non-discrimination is in
itself a vital factor in ‘respecting' employees' religious freedom – at least
in the ‘passive' sense.

More proactive efforts to respect freedom of religion or
belief in the workplace are likely to prove – at least from a corporate point
of view – more problematic. It is common within international corporate culture
for religion or belief to be considered an essentially ‘private' matter that
should neither be actively promoted nor discouraged by employers. Likewise, the
proactive accommodation of any one religion or belief within the workplace
potentially leaves employers open to accusations of favouritism and/or
discrimination (see below) – and also risks undermining workplace unity. Even
in jurisdictions where the legal regime protecting religious rights in the
workplace is highly articulated, businesses are generally not obliged to
accommodate religious freedoms to the extent that their commercial viability is
compromised.

Nonetheless, the placing of restrictions on the freedom of
religion or belief of certain groups may amount to indirect discrimination. For
example, where a company insists that no religious clothing or headwear is worn
by any employee, this will – in effect – exclude those employees whose
religions require them to wear certain clothing or headwear from working at the
company. Likewise, there are potential complications when companies accommodate
the religious freedoms of one group in a way that is unequal to – or even
prejudicial to – another group. As a result, this dilemma looks at both of
these human rights issues together.

The nature of non-discrimination

It should also be noted that non-discrimination does not
necessarily mean treating all cases of religion or belief within the workplace
on an equal basis. As noted by the
Human Rights Committee, "right to equality before the law and to equal
protection of the law without any discrimination does not make all differences
of treatment discriminatory... differentiation based on reasonable and
objective criteria does not amount to prohibited discrimination within the
meaning of article 26 [of the International Covenant on Civil and Political
Rights]".2

As a result, the point about non-discrimination is not
necessarily to apply exactly the same policies and principles in
all locations. Instead, it is about achieving whatever policies are needed to
ensure all employees are – in reality – treated equally, irrespective of
location or context. The need to deal with local circumstances – or the specific
requirements of certain religions – means companies may actually need to apply
different policies in different locations.

Whilst addressing such issues, responsible companies must
also adhere to national law (when in conformity with international law),
successfully and sensitively navigate local norms and taboos and maintain
profitability.

Real-world
examples

Specific examples of dilemmas that business may face in
respecting religious rights in the workplace are predominantly found in
countries with well-established legal protections and effective legal
enforcement regimes. However, the dearth of reporting on this topic in areas
with weaker laws and enforcement mechanisms does not mean that there is no
problem in the first place. Indeed a lack of statistical evidence and/or
publicly reported legal proceedings addressing religious discrimination could
in certain contexts suggest that official protection of freedom of religion or
belief is actually inadequate – or that it is so culturally accepted that it is
essentially considered normal.

This suggests that respecting non-discrimination of
employees on grounds of religion or belief may be more of a challenge in some emerging
markets than in the traditional locations in which MNCs have historically
operated. Nonetheless, in order to illustrate some of the issues around this
topic, it is often necessary to use examples from outside the emerging
economies. This is in order to establish the principles and lessons that
companies can try and apply in potentially more challenging circumstances (e.g.
guidance precedents) – and to identify the kind of outcomes that MNCs would
ideally achieve, irrespective of location.

In February 2010, Nadia Eweida - a Christian female British Airways (BA)
employee - lost her appeal regarding a lawsuit based on
religious discrimination. In 2008, the Employment Appeal Tribunal had ruled
against her claim that she was a victim of indirect religious or belief
discrimination stemming from a corporate uniform stipulation. As part of a new
wardrobe policy invoked in 2004, BA prohibited any visible item of adornment
around the neck. On three occasions, Ms. Eweida attended work with the cross
visible under her uniform but concealed it when requested. However, she eventually
changed her stance and refused to cover up the cross, which resulted in a
six-month unpaid suspension.

After a high profile media campaign, in 2007 BA relented and
amended its wardrobe regulations to allow for the display of faith or charity
symbols. However, Ms. Eweida pursued a claim of £120,000 in damages and lost
wages. In explaining the decision to dismiss the case, Lord Justice Sedley,
indicated that indirect discrimination was defeated by BA's case on
justification. He said: "This case has perhaps illustrated some of the
problems which can arise when an individual asserts that a provision, criterion
or practice adopted by an employer conflicts with beliefs which they hold but
which may not only not be shared but may be opposed by others in the workforce".

After the Supreme Court refused to hear her case in October
2010, Ms. Eweida announced her intention to appeal to the European Court of
Human Rights (ECtHR) and, in September 2012, along with three other individuals
from the UK claiming religious discrimination at work, the Strasbourg court
heard the case. On 15 January 2013, the ECtHR held in favour of Ms. Eweida,
stating that BA had not struck a fair balance between her religious beliefs and
the company's wish to project a certain corporate image.3
Interestingly, in July 2012, during Prime Minister's Questions, David Cameron
stated that he believed the ability to wear religious symbols at work to be a
vital religious freedom, and that the law would be changed to protect it. The
issue is complicated, however, by the fact that BA's policy related to all
visible jewellery worn around the neck, not simply religious jewellery.

Starting in 2006, JBS Swift and Co. faced a dispute at one
of its US facilities between its Latino workers and a group of Muslim employees
that had recently emigrated from Somalia as political refugees. Many of the new
Somali workers were observant Muslims who wanted to maintain their traditional
prayer schedule. The disagreement was predicated on how to accommodate the
prayer time for the Muslim employees without disadvantaging other employees or
compromising productivity. The Somalis offered to let their employer deduct pay
for time at prayer, but supervisors considered it untenable to lose the labour
of hundreds of people simultaneously, even if the interruptions lasted less
than five minutes. The Latino employees were concerned about how these and
other concessions would impact their right to equal treatment in the workplace.
Tensions escalated to formal discrimination claims, mass job walk outs and
public protests by both sides.4
This scenario demonstrates the complexities involved in placating competing
demands within a diverse workforce, whilst maintaining workplace continuity,
productivity and cordial relations among employees – a lesson that is as
applicable in the US, as it is in any other country with religiously diverse
workforces.

In 2007, a member of the Sikh religion, which generally does
not permit shaving, lost his religious-discrimination
case against Chevron US, which has a clean-shaven policy. The employee's
job required the use of a respirator that forms a tight seal with the face to
prevent exposure to chemical fumes. The company argued that this respirator
could not be used properly with facial hair. The circuit court determined in Bhatia vs.
Chevron USA, that the company had tried to accommodate the employee
by attempting to find him a different but comparable job that did not require
the use of a respirator, and that the company's safety precautions were in line
with federal regulations. The principles on which this decision was based –
reasonable and objective accommodation – is one that can guide MNCs when
addressing similar religious issues in a wide range of workplace locations.

Islington Borough Council registrar appeals to European
Court of Human Rights after refusing to officiate at civil partnerships on
religious grounds

In 2009, Lillian Ladele, a registrar at the London Borough
of Islington Council took her employer to court after claiming that its
‘Dignity for All' equality and diversity policy, which required all registrars
to officiate at civil partnerships, discriminated against her Christian
beliefs, by which she objected to same-sex unions, under the Employment
Equality (Religion or Belief) Regulations 2003. She also made a related
harassment complaint.

The key question faced by the Court of Appeal was whether
the Council's policy indirectly discriminated against Ms. Ladele, by requiring
all registrars to carry out a task which, due to her religious beliefs,
disadvantaged her to a greater extent, and, if so, whether it could be
proportionately justified. Whilst the first limb of this test was answered in
favour of Ms. Ladele, the court concluded that accommodating her beliefs by
allowing her to swap civil partnership ceremonies with other employees would
not be practical, efficient or compliant with the ‘Dignity for All' policy,
which it deemed significant for the protection of fundamental human rights. In
addition, the implementation of the policy "did not impinge on her religious
beliefs; she remained free to hold those beliefs and free to worship as she
wishe[d]." Along with Ms. Eweida, mentioned above (‘Christian British Airways
employee wins indirect religious discrimination appeal over cross'), Ms. Ladele
took her case to the European Court of Human Rights (ECtHR) in September 2012.
On 15 January 2013, the ECtHR rejected her appeal, stating that the council's
actions had been legitimate as it was obliged to consider the rights of
same-sex couples.5

This scenario demonstrates the potential divisiveness of
diversity policies when the characteristics of one traditionally marginalised
group run contrary to the beliefs of another. For this reason, the equal
protection of all groups may not be practically possible, at which point it may
be prudent for a business to assess the needs of each group, along with their
bases and justifiability.

Intel decides to stop employing Jewish workers at its
Jerusalem plant on Saturdays following protests by the ultra-Orthodox community

The ultra-Orthodox community (also known as ‘Haredi Jews')
in Israel comprises 12% of the Jewish population and is rapidly growing in
number compared to other groups. There are tensions between Haredi and
non-Haredi Orthodox Jews, as well as between Haredi and secular Jews over
issues such as Jewish conversions, civil marriage and gay rights. Religious
Jews are forbidden to work on the Jewish Sabbath, and in recent months the
ultra-Orthodox have become increasingly militant in enforcing the Saturday work
ban, including rallies against the opening of public car parks.

Intel has had operations in Israel for several years, but
after sustained rallies by the ultra-Orthodox Jewish community who oppose work
on Sabbath, it decided to stop employing Jewish workers at its Jerusalem plant
on Saturdays. As reported by the BBC, under a compromise deal, Intel will
only employ 60 non-Jewish staff on the traditional day of rest.6
This demonstrates the kind of strong religious pressure companies can
potentially find themselves subjected to from wider society – and which can
have a significant operational impact.

For examples of how companies such as Tyson Foods, American
Express and TPG seek to curtail religious discrimination in the workplace, see:

Companies are likely to face religious challenges in the
workplace where it is operating in a context characterised by:

Discriminatory or repressive regulations

As noted by the ILO in "Equality
at Work: Tackling the Challenges",7
religious discrimination is often worse in countries where there is little
freedom of religion or where a state religion disadvantages or excludes other
religions or beliefs. Common legal restrictions include measures that bar
individuals of certain faiths from working in particular sectors or jobs, require
people of all faiths to adhere to mainstream religious norms, place onerous
restrictions on specific forms of religious expression and severely impair
freedom of association for religious purposes.

The ILO notes that in Saudi Arabia, for example, non-Muslim
migrant workers are forbidden from the public display of religious symbols such
as Christian crosses or Hindu tilaka and advertisements exclude certain groups
(particularly Hindus). Similarly, in Senegal and Sudan, Christian job
applicants are required to deny their faith or to convert to Islam if they want
to be employed. In Egypt, Coptic Christians are subject to persistent
discrimination, with limited access to education, recruitment and promotion.8
In other states – for example where governments maintain secularist or
atheistic philosophies (e.g. China or, at a constitutional level, Turkey), all
religious groups are potentially subject to restrictive or repressive measures.
The dilemma for businesses operating in environments with discriminatory or
repressive regulations is to avoid tacitly facilitating the external dynamics
of marginalisation and unequal treatment in workplace, whilst maintaining both
a political and social licence to operate.

Legal compliance by companies

In a small number of extreme cases, local laws may actually
require companies to support – or even exercise – a degree of religious
intolerance. This is often the case where there is an official state religion
and the majority of the population adheres to an orthodox strand of the faith
(for example, Islam in Saudi Arabia), or where secularism is official policy
(for example, China and Turkey).

In China, for example, the Falun Gong religious group is
outlawed – meaning that companies may actually break the law by facilitating or
supporting their activities, or by failing to assist the authorities in their
investigations/enforcement of the law. In such circumstances, companies will
have little choice but to comply with local legal requirements. This is a
dilemma that has been experienced by certain MNCs operating in China – with cases of local law enforcement officials searching company offices and records
for evidence of Falun Gong activity amongst employees. In such cases, companies
might be obliged by domestic law to cooperate with the local authorities.

This does not mean, however, that such situations will not
give rise to controversy or human rights concerns. In September 2010, for
example, it was reported
that a Falun Gong employee of Australian air carrier Qantas (Queensland and
Northern Territory Aerial Services) claimed that she had been demoted from her
job as an international flight attendant after being found to have carried
Falun Gong materials into China.9
The Chinese authorities found a copy of Zhuan Falun (the main Falun Gong text) in
her luggage, as well as a newspaper linked to the movement – resulting in her
deportation and warnings not to return to the country. Qantas said that they
had limited the employee to short-haul flights because its international crew
needed to be able to travel to any country. Qantas also noted that its staff
manual forbade employees from ‘conveying' newspapers while working.

Similarly, there are several countries – both in traditional
MNC markets and in emerging economies (see below) – that have opted to ban the
burqa (i.e. outerwear used by some Muslim women to cover their entire body
other than their eyes and hands) or similar items of clothing in public spaces.
They have done so using a range of justifications including, amongst other
things, national security, societal integration and women's liberation.10
In July 2010, for example, Syria announced a ban on niqabs (full face veils and
robes) in both public and private universities. Turkey and France have similar
restrictions, whilst Belgium and Spain are in the process of enacting
legislation along the same lines – some of which may be relevant to the
workplace, even though the primary focus is on outlawing particular categories
of veils in public spaces. Thus, when companies consider the details of the
extent to which they allow the physical manifestation of religious beliefs in
the workplace, they will nonetheless need to comply with relevant legal
requirements.

Prevalent and embedded social intolerance

Some emerging economies might have adequate legal protection
ensuring both freedom of religion and non-discrimination, yet are characterised
by animosity between religious groups – or antipathy for religious groups by
non-religious groups and vice versa. If cultural assimilation and amicable
co-existence is lacking outside the workplace, it is likely to also be
reflected (at least to some degree) within the workforce.

For instance, tensions between Muslims and Hindus are
particularly acute in some areas of northern India and have erupted into mass
violence. In a context where friction between groups is so intense,
discrimination or harassment might infiltrate into the workplace.

This issue can be aggravated where religious discrimination
coincides with ethnic or social prejudices. The ILO notes, for example, that in
India, Pasmanda and Dalits (the lowest castes) suffer more extreme
marginalisation and socio-economic discrimination if they are either Muslim or
Christian. In other countries such as Afghanistan, Bangladesh and Pakistan, meanwhile, Hindus are treated as unequal citizens and confined to low-skilled
jobs.11

Apparent conflicts between religions, human rights and
business objectives

In addition, MNCs are likely to face a number of challenges,
particularly as they come into greater contact with societies that demonstrate
high levels of religious orthodoxy – as well as conflicting values and
priorities. This is not only a matter of companies moving into new operating
contexts. Increasing labour migration also means that these issues can impact
MNCs within their better-established operations as well. When addressing
religious accommodation, companies should take care to present policies in a
transparent manner and provide a sound rationale underpinning their decisions.

Religion or belief

First, there is a risk that by fully respecting and
supporting the religious rights of one group, the rights of other religious or
belief groups might be undermined (or perceived to be undermined). An example
of this might be where Christian Evangelicals demand the right to proselytise
and/or convert non-Christians. Accommodation of such a demand within the
workplace would clearly provoke opposition amongst other religious or belief
groups or the staff in general. Likewise, the differing requirements,
manifestations and practices of different religious groups mean that MNCs are
likely to be subject to conflicting demands depending on the group in question.
Examples of this issue can be found in the JBS Swift and HP cases above.

Human rights

Secondly, there is a risk that by respecting and supporting
certain religious rights, an MNC can undermine other human rights. Although
there are a number of circumstances in which such situations could occur,
examples within the workplace might include:

Proselytising:
Jehovah Witnesses, Mormons, Christian Evangelicals and other groups place
a premium on proselytising and in many cases consider it a religious duty
to encourage conversions within the workplace. In many cases, this is
likely to cause tensions – or be perceived as a form of harassment

Gender
intolerance: Some hard-line adherents to Islam and certain other religions
may consider it a religious duty to avoid contact with members of the
opposite sex within the workplace. Accommodating this requirement within
the workplace could be considered objectionable by both men and women who
consider it a barrier to gender equality. An example of this kind of
‘conflict' might be found in countries such as Saudi Arabia, where there
are strong religious norms that require the strict separation of men and
women – including in the workplace.

Intolerance
of alternative lifestyles: Many orthodox religious adherents will sit uneasily
with those exhibiting different life choices within the workplace
including, for example, homosexuality. Indeed, they may consider it a duty
to either avoid individuals in this category, or to even ‘reform' them.
This risks compromising other people's freedom of thought, conscience and
religion, and right to privacy

An example of this can be found in the Intel example
mentioned in the previous section. That particular case illustrated that
demands for changes to internal policies can originate from outside the
workplace. Orthodox members of the greater community exerted sustained pressure
that caused the company to eventually relent and change their operational
strategy. Whilst satisfying Orthodox groups, the halt to business activity on
Sabbath implicitly restricted the ability of non-Orthodox Jews (and other
groups) from working on Saturdays.

Business objectives

Thirdly, a person's religious beliefs may be in direct
conflict with a company's business objectives. Examples might include situations
where strict adherence to certain religious demands will:

Increase
health and safety risks (e.g. features of religious clothing result in
heightened health and safety risks (e.g., the wearing of loose headwear or
garments such as a burqa around moving machinery)

Preclude
employees from participating in certain business activities (e.g. the
non-participation in certain finance activities due to concerns regarding
the Islamic need to avoid ‘usury', the handling of non-Kosher meat by
Orthodox Jews etc.)

Bangladesh: Whilst the 2010 annual report of the US Commission
on International Religious Freedom noted that religious minorities,
including Ahmadiyyas, Hindus and Christians, are discriminated against at both
government and societal levels,12
the 2012 report states that the Commission is encouraged by recent government
steps to rectify past violations of religious freedom, such as the confiscation
of Hindu-owned land, and the violent exploitation of many religious and ethnic
minorities. However, in February 2012, violence, destruction, and looting
followed an attack by the Muslim majority on the minority Hindu community in
Chittagong. In response, local police have reportedly filed two cases, naming
around 800 individuals as responsible for the "the arson and vandalism of
several Hindu temples, shrines, and other property".13

China: According
to a 2009 Amnesty International report, ‘Doing
Business in China: The Human Rights Challenge', although the Chinese constitution
recognises the right to freedom of religion, the government represses religion
outside its official channels.14
The US Department of State notes that the Constitution protects only
"normal religious activities," and officials have wide latitude to
interpret the meaning of "normal".15
All unregistered religions are considered illegal. The report goes on to note
that Falun Gong practitioners, Uyghur Muslims, Tibetan Buddhists and
unregistered Christian groups all face persecution. Falun Gong has been
officially banned since 1999. Amnesty International USA's 2012 Annual Report indicated
that "Falun Gong practitioners were at particularly high risk of torture and
other ill-treatment in detention".16
Similarly, the US Department of State's 2011International Religious Freedom Report on China
notes: "Falun Gong sources estimated
that since 1999 at least 6,000 Falun Gong practitioners had been sentenced to
prison. Falun Gong adherents also have been subjected to administrative
sentences of up to three years in ‘re-education through labour' (RTL) camps."
Some Christian groups also face discrimination. For example, in the 2012
annual report of the US Commission on International Religious Freedom, it
was reported that, in the past year, hundreds of unregistered Protestants
continued to be detained, while the government had increased efforts to shut
down public worship activities at perceived illegal meeting points.17

Egypt: The
2012
annual report US Commission on International Religious Freedom states that Coptic
Christians and marginal Muslim sects are harassed, while Baha'is face official
intolerance at the hands of the state,18
a situation not improved by the current transitional government, under which
dozens were killed and many injured in security and military force attacks on
Coptic Christians during the reporting period of the Commission's latest
report.19
The government discriminates against non-Muslims in public sector employment. Since
the 1970s, there have been sporadic clashes between Muslims and members of the
Coptic Christian minority (comprising 10% of the population). News analysis
indicates that the most serious cases usually take place in poor, rural areas
where the trigger is often a dispute over land or personal relationships and escalates
into localised sectarian violence. Human
Rights Watch claims that violence against the Coptic community often occurs
with impunity, and human rights defenders campaigning for better treatment of
the community face persecution.20

India: Following a visit to India in March 2008,
in her Mission
Report, the UN
Special Rapporteur on Freedom of Religion or Belief expressed concern about a
number of issues, including: the situation of religious minorities; justice for
victims and survivors of communal violence; freedom of religion or belief in
Jammu and Kashmir; the negative impact of laws on religious conversion in
several states; and the implications of religion-based personal laws.21 The Committee on the Elimination
of Racial Discrimination (CERD) has also indicated that despite constitutional
guarantees of non-discrimination, as well as criminal law which punishes acts
of discrimination, "widespread and often socially-accepted discrimination,
harassment and/or violence persist against members of certain disadvantaged and
marginalised groups, including... religious minorities such as the Muslim
population."22
The US
Commission on International Religious Freedom noted several incidents of
wide scale violence and mass displacements of Christians and Muslims at the
hands of Hindu extremists in 2008-2009, and in 2012, declared its concern over
the slow and ineffective progress made in achieving justice for the victims of
such events.23

Indonesia: The
Constitution enshrines freedom of religion and official recognises six
religions (Islam, Protestantism, Catholicism, Hinduism, Buddhism and
Confucianism). These provisions are generally respected.24
Other religions must register with the Ministry for Culture and Tourism, which
restricts their right to establish a house of worship. Members of the Ahmadiyah
Islamic sect, considered heretical by many mainstream Muslims, are reportedly subject
to discrimination. Reports indicate that Christians and Jews also face
discrimination and occasional physical attacks, particularly in West and East Java.25
Despite being a relatively stable democracy with stronger human rights
protection than ever before, the government has sometimes tolerated the actions
of extremist groups and allowed national and regional laws to restrict
religious freedom.26

Iran: In
2012, the US Commission on International Religious Freedom reported that even
though Zoroastrians, Armenian and Assyrian Christians and Jews are recognised
as ‘protected' religions minorities in a country where Shi'a Islam is the
official religion, they have faced increasing discrimination and repression.27
Specifically, the Commission reports that religious minorities such as Baha'is,
Christians and Sufi Muslims face physical attacks, harassment and arbitrary
detention. Moreover, in its 2010 report entitled ‘Iran: End
Persecution of Baha'is Dozens Detained Without Charge; Leaders Face Charges
Carrying Death Penalty', Human Rights Watch has indicated that since the
Islamic revolution in 1979, the Iranian government has implemented various
discriminatory policies against Baha'is, including limiting their access to
education and employment.28

Nigeria: According to the US
Commission on International Religious Freedom, the government of Nigeria
continues to respond inadequately and ineffectively to recurrent communal and
sectarian violence. Since 1999, more than 14,000 citizens have been killed in
religious violence between Muslims and Christians, and in the past year, both
groups have been the target of violence by extremist Islamist group, Boko
Haram.29
Other concerns with regard to religious freedom in Nigeria include the
expansion of Shari'a law into the criminal codes of several northern Nigerian
states and discrimination against minority communities of Christians and
Muslims across the country.30
After her 2005 visit, the UN Special Rapporteur on the Freedom of Religion or
Belief highlighted in her Mission
Report the following areas of concern: impunity for communal violence;
political manipulation of religious difference; and harsh punishment amounting
to torture and cruel, inhuman and indecent conduct in the states that anchor
their penal code in Shari'a law.31

Pakistan: In
its 2012 Annual
Report, the US Commission on International Religious Freedom found evidence
of "systematic, ongoing and egregious violations of freedom of religion or
belief" and religiously discriminatory legislation (such as the anti-Ahmadi
laws and blasphemy laws) that fosters an atmosphere of intolerance.32
Moreover, the report indicates that sectarian and religiously-motivated
violence is chronic and the government has failed to protect members of
religious minorities from persecution and bring perpetrators to justice.33 The UN
Special Rapporteur on Freedom of Religion or Belief has stated that "in Pakistan
and elsewhere, Ahmadis have been declared non-Muslims and have been subject to
a number of undue restrictions and in many instances institutionalized discrimination".34
All citizens are subject to certain provisions of Shari'a and blasphemy laws.
Shi'a Muslims, Christians and Hindus are also reported to face harassment and
violence.

Russia: There is no official state religion and the law
recognises Russian Orthodoxy, Islam, Judaism and Buddhism as ‘traditional'
faiths. Although the law enshrines freedom of religion, human rights groups
have concerns about frequent instances of discrimination against minorities and
the prevalence of xenophobia. In its 2012 report, the US
Commission on International Religious Freedom noted the deteriorating
conditions of religious freedom, and the increased frequency of the use of
anti-extremist legislation against religious groups not known to advocate
violence, such as Jehovah's Witnesses. The report indicates that national and
local government officials also discriminate against groups they view as
non-traditional and Muslims through the enforcement of other laws pertaining to
taxation and organised crime. Harassment has come in the form of denials of
registration and detention and harassment of religious community members. In
addition, there are reportedly often delays and refusals to permit construction
or leasing of places of worship.35

Turkey: Turkey has a democratic government and the country's constitution calls for the protection
of the freedom of belief and worship, and the private dissemination of
religious ideas. However, the Turkish government's attempts to control religion
and exclude it from the public sphere based on its ‘Ataturkist' policy of state
secularism reportedly results in serious violations of religious freedom for
many of the country's citizens. According to the US
Commission on International Religious Freedom, severe limitations on the
freedom of religion or belief are experienced by the majority Sunni Muslim
community, minority Alevi Muslims, as well as Christians and the Greek,
Armenian and Syriac Orthodox communities.36
Only Sunni Islam is officially permitted and the state controls all official
mosques, training of Muslim clergy and the content of sermons.37
Whilst the government has recently taken some positive steps with regards to
education, property, and religious dress, they remain ad hoc
announcements, which have not significantly affected constitutional and legal
measures for the remedy of religious freedom violations against non-Muslim
minorities.38

Viet Nam: Although freedom of religion is enshrined in the constitution,
in its 2009 Annual
Report Amnesty International noted that a religious decree implemented in
2004 "codifies de facto state rule over all aspects of religious life".39 The US
Commission on International Religious Freedom reports that individuals
continue to be imprisoned or detained for reasons related to their religious
activity or religious advocacy (particularly, in the latest reporting period,
"new converts to ethnic-minority Protestantism"); police and government
officials are not held fully accountable for abuses; and independent religious
activity remains illegal.40
In an October 2009 report, ‘Vietnam:
Sharp Backsliding on Religious Freedom', Human Rights Watch notes that the
governing boards of officially authorised religious organisations are under the
control of the government. Some religious factions are also banned, including
part of the Hoa Hoa Buddhist Church and the Unified Buddhist Church of Viet
Nam. In addition, Human Rights Watch indicates that hundreds of people are
currently imprisoned in Viet Nam for their religious or political beliefs, or a
combination of the two.41

Legal risks

Legal risks – discrimination

The right to be free from religious discrimination can be found
in several international human rights instruments as it is a part of the
prohibited grounds for discrimination. Several international human rights
covenants outlaw discrimination based on race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.42
In addition, the ILO has adopted No. 111, Convention
Concerning Discrimination in Respect of Employment and Occupation (1958).

According to this convention, discrimination includes:

"Any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation

Such other distinction, exclusion or preference which has
the effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation as may be determined by the Member concerned
after consultation with representative employers' and workers'
organisations, where such exist, and with other appropriate bodies"43

Most ratifying states have relevant national legislation in
place implementing the terms of these international legal instruments.44
Nonetheless, ratification does not equal enforcement, particularly in
environments where groups vulnerable to discriminatory treatment wield little
influence or power.

The US, for example, has a well-established federal
anti-discrimination regime enforced by the US
Equal Employment Opportunity Commission (EEOC). The relevant legislation is
Title VII of the US Civil Rights Act of 1964. Whilst clearly not directly
applicable to many emerging market scenarios at this juncture, this legislation
nonetheless sets out some important principles – that are likely to be
reflected in legislation in a number of countries and/or provide guidance for
companies as to how to approach this issue.

The Civil Rights Act prohibits harassment or any other
employment action based on:45

Affiliation with a particular religious or ethnic group

Physical, cultural, or linguistic characteristics, such as
accent or dress associated with a particular religion, ethnicity, or
country of origin

The perception or belief that a person is a member of a
particular racial, national origin, or religious group whether or not that
perception is correct

Association with a person or organisation of a particular
religion or ethnicity

An example of a lawsuit under
this legislation involved an allegation by an Iranian Muslim analyst employed
at Merrill Lynch. Majid Borumand alleged that the bank refused to promote him.
He was ultimately fired in 2005, allegedly because of his religion and national
origin. Simultaneously, a less qualified colleague was promoted. According to
the June 2007 complaint, filed with the US District Court in Manhattan,
Borumand was subject to such comments as "the reason that you are not
allowed on the trading floor is because you are from a country which has a high
risk factor and a threat."46
The resulting settlement with the EEOC required Merrill Lynch to pay a total of
US$1.55 million to Borumand (in back pay, damages and legal fees) and to commit
to improving employee training regarding religion and national origin bias.

Legal risks – Freedom of thought, conscience and religion

Under Article 18 of the ICCPR, "Everyone shall have the
right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching".
The freedom of employees to manifest their religion may however, be subject to
certain limitations that are necessary to protect public safety, order, health
or morals, as well as the fundamental rights and freedoms of others.

As a result, companies will find that they are subject to a
legal obligation, in many of the countries in which they operate, to
accommodate the religious expression of their employees. As noted above, however,
such accommodation can legitimately be limited. In the US, for example, this
obligation can be limited to the extent to which it:

National anti-discrimination laws will often also cover
freedom of thought, conscience and religion due to the sometimes close
relationship between these two issues. For example, under Title VII of the
Civil Rights Act of 1964, companies are required (on notice) to "reasonably
accommodate an employee whose sincerely held religious belief, practice, or
observance conflicts with a work requirement, unless providing the
accommodation would create an undue hardship." As with discrimination, failure
to make such reasonable accommodations would, in the US at least, result in
significant fines and/or specific performance.

Legal risks – consequences

In the event that companies breach national laws relating to
discrimination and/or freedom of thought, conscience and religion, they are
likely to face a range of sanctions including:

Damages (e.g. back pay, loss of earnings etc)

Fines (e.g. as mandated by relevant regulations)

Specific performance (e.g. re-instatement, promotion, etc)

Other costs can come in the form of legal fees and diverted
management time.

Reputational risks

Even where allegations of complicity do not result in legal
action, companies can still face a range of non-legal risks. This is
particularly the case for reputational risk, which can be very serious for companies
operating in a number of emerging markets. If a company is perceived to be
unaccommodating to the religious requirements of workers – or to be failing to
protect workers from discrimination – it may end up alienating a range of
stakeholders including consumers, investors, current employees, prospective
employees and civil society members.

This has the potential to result, for example, in:

Divestment by ethical investment organisations (many of
which have religious origins) who perceive an intolerant or insensitive
approach to local religious sensibilities or evidence of discrimination

Reduced staff morale, motivation and commitment

Reduced sales as a result of brand erosion amongst
consumers who are either part of, or sympathetic to, religious groups that
are perceived to be subject to restrictions and/or limitations on their
religious beliefs/practices

In addition, there is also a reputational risk if MNCs are
seen as condoning discriminatory practices and policies of a given state, which
are in contradiction to international human rights law.

Commercial risks

As noted by the UN Global Compact and UN Alliance of
Civilizations report, Doing
Business in a Multicultural World, "to be successful in an inter-connected
world, businesses of all sizes and in every country must be able to compete
effectively in diverse, multicultural environments". This, notes the report, is
due to the business advantages offered by:

Creating a diverse and inclusive workplace that can
attract, retain and motivate the best talent

Recognising and responding to the diverse and changing
needs of customers in the market place

Managing critical relationships with government
authorities and local communities in order to maintain a licence to
operate48

In light of these considerations, companies that fail to
responsibly address religious discrimination and freedom of religion risk
losing out on these benefits. Although it is relatively hard to ‘prove' that the
commercial interests of a company has been harmed, globalisation, the growth of
non-Western consumer markets and the internationalisation of the global
workforce means some long-term consequences are likely.

The starting point for protecting employees' rights relevant
to this dilemma is adherence to national legislation regarding religious rights
in the workplace. In situations where local legislation falls short of
international legal standards, companies should aspire to meet these higher
standards.

According to the UN's the "Protect,
Respect and Remedy"49
policy framework ("the framework"), business has a responsibility to respect
all human rights. To meet its responsibility to respect human rights, the
framework states that a responsible company should engage in human rights due
diligence50
to the level commensurate with the risk of infringements posed by the country
context in which a company operates, its own business activities and the
relationships associated with those activities.51

The framework also specifies the four main components of the
human rights due diligence: a statement of policy articulating the company's
commitment to respect human rights, serving as guidance underpinning specific
actions; periodic assessment of actual and potential human rights impacts of
company activities and relationships; integration of these commitments into
internal control and oversight systems; and tracking and reporting performance.

Companies can seek specific
guidance on this and other issues relating to international labour standards
from the ILO
Helpdesk.52
This aims to help company managers and workers understand the ILO approach to
socially responsible labour practices and to assist in the development of good
industrial relations. The ILO Helpdesk website also contains detailed
factsheets and links to information, resources and frequently asked questions
on labour issues, using the ILO Declaration of Principles concerning
Multinational Enterprises and Social Policy as the framework. This includes
information on decent work principles including the payment of a living wage.

1. Where relevant and proportionate, conduct an
assessment of the company's religious context

Where relevant (for example, when entering into new markets,
establishing new operations, making major changes to the workforce, etc.)
companies can assess the risks posed by:

The religious context in which they are operating

The company's impact on their operating environment (any
such assessment should be proportionate to operational requirements and
may range from a ‘quick' desk-based assessment, to a far more extensive
exercise)

The impact (depending on their sector and geographical
presence) of business partners, suppliers and contractors on religious
rights

When conducting an assessment, companies could use in-house
expertise or seek assistance from academic experts of religious figures as they
see fit. The assessment may focus on three key issues:

External environment:

In each operating theatre, what are the relevant laws
pertaining to equal opportunity, non-discrimination, harassment and
religious expression? Are these laws equally applicable to all religions?
What is the legal situation of the non-religious population?

What are the religious characteristics of operating
environments in terms of, among other things, demographics, tensions and
past/current conflicts based on religious antipathy?

Internal environment:

What are the religious characteristics and cultural values
of employees?

To what degree do religious values impact other human
rights such as gender equality?

Which religions practiced by employees have workplace
implications? Are there well-articulated policies on accommodation to
address these issues?

To what extent are religions accommodated in equal
measure?

How business activities can impact on the religious
convictions and sensibilities of employees?

What are the religious traits of stakeholders (i.e.
customers, governments and local communities)? To what extents do business
partners have policies and procedures in place to protect their workforces
from religious discrimination – and to protect their freedom of religion
or belief?

To what extent is there friction between the predominant
beliefs within the workplace and between the internal company setting and
the external environment?

Where practicable, it is important for assessments to have a
multi-stakeholder focus. This could entail the inclusion of, among other
specialist participants, NGOs, religious organisations and academic experts.

In designing an assessment a company may wish to consult
existing guidance documents, such as the International Finance Corporation, UN
Global Compact and International Business Leaders Forum's Guide
to Human Rights Impact Assessment and Management. This Guide provides
companies with a "process to assess their business risks, enhance their due
diligence procedures and effectively manage their human rights challenges."54
It is further supported by their online
guide, which guides users through different stages of the assessment
process, including Preparation, Identification, Engagement, Assessment,
Mitigation, Management and Evaluation.

The Arab-American
Business Fellowships Programmeis designed to foster mutual
understanding and respect between the American and Arab business communities
whilst providing skills training and networking opportunities for the
successful candidates from each region.See:

Accommodate religious practice and expression (involving,
for instance, dress, schedule and prayer) in a consistent, reasonable and
transparent manner – subject to reasonable business requirements.
Companies will inevitably need to make decisions on a case-by-case basis. As
much as possible, adherents of different faiths should be treated on an
equal basis and any deviation from this approach must have sound business
imperatives underpinning the decision. Companies should be diligent about
documenting such business imperatives (and associated precedents) in order
to minimise the risk of legal action related to unequal treatment – or
related reputational damage.

Maintain a transparent and straightforward complaints
procedure that allows all employees to report cases of religious
discrimination, and investigate all such allegations thoroughly. Companies
may also appoint an ombudsman who is conversant with religious matters (or
an interfaith council) so that employees need not feel threatened about
escalating their concerns.

Maintain a system of sanctions in order to deal with
employees who have been found to illegitimately discriminate against
others on the basis of their religion or belief, or religious practices

Balance the interests of different religious and
non-religious groups in an open and fair way, with the ultimate aim of
achieving equality of outcome for all groups in terms of accommodation (subject
to reasonable business requirements) and non-discrimination

Any policy on religious rights – especially with respect to
non-discrimination – should be supported by relevant implementation mechanisms
to ensure that their provisions are given real effect. These might include, for
example:

The identification of a senior figure in the company with
visible responsibility for non-discrimination policy implementation, as
well as the application of relevant KPIs

The development of relevant protocol/guideline documents
to ‘flesh out' the terms of the policy (see below for further details). If
necessary, these should be adapted to local circumstance so that they are
fully relevant – and culturally appropriate – to the relevant context,
whilst at the same time focusing on the achievement of equivalent outcomes

Monitoring mechanisms to ensure that a) the policy is
being communicated and implemented; and b) that this is having a positive
effect on the company's human rights performance (see below for further
details).

Reporting mechanisms to communicate to employees (and
other relevant stakeholders) company performance in managing this issue
(see below for further details)

Where relevant and practicable, companies may consider
encouraging or requiring business partners (e.g. sub-contractors, joint venture
partners, franchisees, etc) to adhere to their policies or to develop similar
standards.55

In 2001, Ford
Motor Company established its ‘Interfaith Network'; a company-sponsored program
that promotes the shared expression and education of different faiths among
employees.See:

3. Where relevant, establish an appropriate protocol on
religious clothing and grooming

In areas characterised by well-established legal protection
for religious freedom, companies may be legally required to accommodate certain
religious practices amongst employees. This requirement is rarely unqualified,
however. For example, in the US, companies will not need to accommodate such
practices to such a degree that it has the effect of driving away customers or
that it causes a company to go out of business. According to US legal
standards, for instance, accommodation has to be ‘reasonable' but does not need
to take the specific form suggested by the employee.56
Similarly, international human rights law on the topic of religious expression
is not a categorical right. According to Article 18(3) of the ICCPR, restrictions
on the freedom to manifest religion or belief are only viable if they are
prescribed by law and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms of others.

Companies may consider, for example, establishing clear and
fair rules regarding the physical expression of faith by employees.57
This includes the wearing of:

Yarmulkes (skullcaps or kappel)

Hijabs (Muslim headscarves)

Crosses

Turbans

Bindis

Additionally, complying with grooming policies relating to
shaving and hair length might cause difficulties for adherents of certain
religions, so companies might consider the extent to which they can reasonably
be flexible on this topic within the limits imposed by the nature of business
activities.58

There will be cases where companies can legitimately curtail
flexibility given to employees in terms of grooming habits and dress. This may
be due, for example, to:

Consistency between concessions given to different
religious groups. Even though some accommodations are seemingly easier to
allow than others (e.g. yarmulkes compared to dreadlocks), in the
interests of equal treatment, requests by employees need to be thoroughly
considered in a transparent manner. In this way, companies might avoid
charges of either overt or camouflaged differential treatment depending on
the religion or belief involved59

Conformity with local laws or cultural expectations (e.g.
the attire of female employees when attending meetings or functions outside the
workplace in a religiously conservative environment)

The case of Chevron US, described above in the ‘real-world
examples' section, demonstrates how this can work in practice. The company's
refusal to allow a Sikh employee to continue in his specific role due to his
refusal to adhere to its ‘clean-shaven' policy was found to be justified on the
basis of health and safety considerations. Because his role required him to use
a respirator against toxic chemical fumes, there was a ‘reasonable and
objective' basis on which to restrict his religious freedom in this respect –
particularly given that the company had offered the employee alternative roles
that did not require the use of a respirator.

The Muslim Council
of Britain has published a guide entitled "Muslims in the Workplace: A
Good Practice Guide for Employers and Employees". The section dealing with
good practice suggestions for employers is not context specific and sets out
principles that could apply to businesses with Muslim employees regardless of
their location. The publication is very useful on the subject of religious
accommodations for Muslims pertaining to, among other things, dress, grooming
and social interaction. It also gives a comprehensive depiction of the relevant
legal framework regulating religious expression and non-discrimination in the UK workplace.

Following a legal tribunal in February 2007, all of British Airways's 34,000 uniformed employees
became entitled to openly wear a symbol of faith. See:

4. Where relevant, establish a protocol on worship in the
workplace

Considering whether to allow prayer in the workplace
essentially falls under the freedom of thought, conscience and religion feature
of the dilemma. Accommodation of worship in the workplace requires a nuanced
approach because it touches on issues related to productivity and equal
treatment of employees of different faiths, as well as those that do not
practice a particular faith. Simply allowing all religious groups to worship as
they see fit will not necessarily ensure equality, promote universal
satisfaction or safeguard productivity.60

A company may wish to consider:

Implementing a consistent policy on prayer groups.
It is advisable that either all groups requesting the ability to meet for
religious reasons are allowed (within reason and in conformance with
stated corporate policy) or none are permitted. General Motors succeeded
in religious discrimination litigation by being steadfast in its policy of
enfranchising ethnic minorities that wanted to gather socially and share
ideas outside of their particular business units, but not allowing similar
gatherings based on religion. A Christian employee failed to prove he was
discriminated against based on his religious beliefs because GM treated
all religious denominations equally – i.e. none of them received official
sanction to meet in the workplace.

Assessing power dynamics within the prayer group(s). If a
particular prayer group is initiated by an executive, employees might feel
compelled to attend. Where lower-level employees take charge of workplace
prayer, there might be reduced potential for perceived abuse and risk
relative to the situation in which leaders preside over the prayer
meeting.

Stipulating that prayer meetings will only address
religious topics. Specifying that topics brought up during meetings will
not involve discussions about work will placate concerns from those that
do not attend about being at an information disadvantage. This is
especially relevant when executives are members of particular prayer
groups.

Designating prayer rooms in a way that is acceptable to
all spiritual or religious uses. Where companies provide spaces for
religious observance, the UN Global Compact and UN Alliance of
Civilizations suggest that: "rooms should be designated in a way that is
friendly for all religious or spiritual uses (e.g. as a "room for
meditation, reflection and prayer"). It is also important to communicate
openly about their establishment, using it as an opportunity to educate
employees about the groups that might want to use it."61

Consulting religious experts and/or hiring chaplains on a
part-time basis. Organisations might consider retaining the services of
chaplains representing different faiths or obtaining their services pro
bono on a part-time basis. Nonetheless, potential problems can arise due
to perceptions of unequal representation. To address this problem,
companies might a) appoint one or more inter-faith chaplains or b) appoint
multiple chaplains, each of which has responsibility for a particular
faith.

Australian IT company TPG responded to calls from unions,
religious denominations and employees to accommodate the Friday prayer
requirements of an Islamic employee by allowing for a five minute afternoon
prayer break and changing the time for lunch break. See:

Tyson Foods offers its employees access to over 100 chaplains
from a variety of religious backgrounds able to speak several languages. The
chaplains provide support on topics including health problems, marital and
family issues, grief and death, substance abuse, and job and financial
concerns. See:

5. Establish a protocol regarding religious holidays and
schedules

According to the UN Global Compact and the UN Alliance of
Civilizations report, Doing
Business in a Multicultural World, companies should – when trying to
accommodate employees' religious holidays or time commitments – consider:

Instituting "floating" holidays (e.g. a paid holiday from
work taken at a time chosen by the employee so that they can choose to
honour religiously-mandated celebrations). For example, IBM provides a floating
holiday scheme to its employees enabling them to exchange time off falling
on public holidays for a significant cultural holidays

Instituting holiday-swapping among employees (e.g. voluntary
substitutions with colleagues of substantially similar qualifications.
Companies can promote this practice by, for example, publicising its
policy permitting such arrangements, promoting an atmosphere in which swaps
are favourably regarded, and providing a central file, bulletin board,
group e-mail, or other means to help employees find colleagues willing to
swap holidays).

There are several factors that might be considered when
evaluating if certain accommodations are reasonable or, conversely, if they
impose an undue hardship on the employer. For example:

Company size (e.g. smaller employers are likely to find
accommodation more disruptive than larger employers)

Length of time involved in the desired accommodation (e.g.
the difference between a short prayer at the start of each day and a
multi-week pilgrimage)

Availability of replacements (e.g. the degree to which a
person can be temporarily ‘replaced' by an equivalent colleague)

Amount of advance notice given by the employee seeking the
accommodation (e.g. short notice can complicate attempts to ameliorate operational
disruption)

Effect on workforce morale of anticipated or actual
complaints of favouritism (e.g. the potential for certain types of
accommodation to introduce divisiveness within the workforce)

Number of employees requiring religious accommodations at
the same time (e.g. the difference between individual accommodations,
compared to accommodations required by a large portion of the workforce )

As demonstrated in the case of Intel in Israel described
above, care needs to be taken when balancing a) business considerations against
the need for religiously-sensitive scheduling and b) interests of different
groups – whether religious or not. For example, the result of ultra-Orthodox
protests against Jews working on the Sabbath resulted in Intel halting the
employment of any Jews (whether ultra-Orthodox or not) on Saturdays. Arguably,
this has undermined the legitimate interests of those more liberal Jews who may
have preferred to work on this day.

Likewise, the JBS Swift and Co. example demonstrates that
this – and other religious accommodations – can prove contentious. In that
case, objections amongst Latino workers at the company's US facilities over the religious accommodations granted to migrant workers from Somalia resulted in claims of discrimination, industrial unrest and public protests on both
sides. In addition, the religious demands of the Somali workforce proved
difficult to accommodate due to the fact that the Somali workers made up such a
significant proportion of the workforce, that accommodation of their prayer
would almost certainly affect productivity.

6. Monitor and report performance

Continuous improvement will be reliant on a company
monitoring its performance and reporting it to relevant stakeholders. The kinds
of indicators that companies can use to monitor their performance in this
respect would ideally be related to the specific issues addressed during the
assessment phase (see above). These might include – depending on local legal
restrictions, privacy concerns and/or company policy – measures such as:

The religious makeup of the workplace compared to broader
society (including, where desirable and practicable, further breakdown by
recruitment, pay, seniority, redundancies, promotions etc.)

Instances – and outcomes – of complaints linked to allegations
of religious discrimination and/or restrictions on freedom of religion or
belief reported through company grievance mechanisms

Instances – and outcomes – of tensions between members of
religious groups/individuals within the workplace

The number of employees benefitting from religious
accommodations made by the company

The number of employees who voluntarily leave the company
who cite religious discrimination as a factor in their decision

In many cases, companies (and their employees) may be reluctant
to take part in this kind of monitoring, however. In part, this is due to the
often ‘private' nature of religion and/or concerns about how the information is
going to be used (e.g. to disadvantage a certain group or individuals). As a
result, any related surveys or information gathering should be of a purely
voluntary nature and should be subject to strict privacy controls that might
include periodic monitoring by external experts

Reporting on the outcome of these measures can play an
important role in communicating positive progress by the company, and of
identifying where policy and implementation is proving effective or
ineffective. Given sensitivities around religious issues in many locations,
many companies will prefer to communicate such information only to select
stakeholders.

7. Establish grievance procedures and remedy mechanisms

Companies may consider instituting grievance procedures in
order to ensure that employees have free and fair access to remedy when they
face religious discrimination or unfair restrictions on their religious
freedom.62

At a basic level, this might include formal procedures
through which complaints can be pursued through the conventional company
hierarchy. Such procedures should ensure that thorough investigations are
carried out in response to each complaint. It is advisable that the company
clearly communicate that these mechanisms:

Are readily accessible to all persons, irrespective of
their religious affiliation or absence thereof

Can be anonymous if desired

Will not result in the complainant facing retribution if
any claims are not proved

Will have structures and procedures ensuring that all
complaints are thoroughly investigated

Will have appropriate and fair restitution mechanisms (e.g.
ranging from monetary damages to restitution of position)

Companies may also consider – particularly in areas of high
religious sensitivity or tension – implementing confidential whistle-blowing
hotlines operated by third parties. This will provide a higher degree of
assurance against retaliation to employees making complaints, and will also
offer them an avenue of redress that does not rely on company hierarchy that
may be part of the problem in the first place. Companies might, for example,
consider the appointment of an ombudsman to oversee the handling of complaints
and ensure that impartiality is maintained during the investigation process.

8. Promote religious understanding and tolerance within
the workplace

Reduce the risk of workplace discrimination through better
understanding of other religions and beliefs (and their practices)

Help contextualise specific accommodations, so that they
are less likely to lead to resentment amongst co-workers

In ‘normal' circumstances, this approach should be relatively
straightforward – for example, awareness raising, inter-faith dialogue etc. In
circumstances characterised by general religious tension, however, this
approach needs to be handled sensitively (e.g. where opinions have hardened to
a point where such efforts are considered intrusive, manipulative or
unwelcome).

Diversity training

Diversity training can take many forms, including internal
instruction by human resource experts, training from external specialists and
online learning programmes. It is relatively rare to have such training focus
purely on religion, and it usually is of a more general nature that encompasses
issues such as race, culture, disability, age, gender and other attributes.
Ideally, such training should be tailored as much as possible to the specific
contexts of those taking part – including particular emphasis on religious issues
where appropriate.

As a part of diversity training, MNCs might consider
initiatives aimed at global integration of their business activities. For
instance, a company could enrol expatriate and executive managers in
cross-cultural management training. Managerial training could comprise two
levels: orientation in their home country where they are free to ask questions
and raise sensitive matters, and orientation in their destination country to
sensitise them to local nuances. In addition, employee exchange programmes
could be established, thereby creating global networks which enable workers to
share ideas, concerns and experiences, including those related to religion.

Another mode of diversity training might entail workshops
dedicated to achieving heightened ‘cultural fluency', including members from
civil society and both the public and private sector. Business for Diplomatic
Action – a non-partisan, non-profit organisation – offers a CultureSpan
workshop that is designed to help executives develop a global mindset based on
an in-depth understanding of cultural similarities and differences, giving them
the tools to build effective international teams and make global decisions
across diverse cultures.

Online forums and intranet sites

Companies might consider using online forums and intranet
sites to generate global discussions on a range of diversity and inclusion
topics and share feedback, knowledge and experience internally. The UN Alliance of Civilizations notes initiatives
in this category are particularly effective when:

Feedback is integrated into CSR audits

Results are used to assess progress

Ideas are used to identify new product or service
development priorities

Successful practices are recognised and used to inform
policy changes63

Companies may prefer to have such sites run by independent
third parties. This is not only due to concerns over the need to distance the
company from what is considered an essentially ‘private' matter, but also due
to the sensitive nature of the material being discussed – as well as the risk
that the company is seen to facilitate or condone unacceptable opinions that
are expressed via such fora. Even when operated by third parties, such sites
should be subject to strong moderation in order to ensure commentary is
constructive and fair – and that such facilities are not abused in such a way
as to incite to discrimination, hostility or violence.

Affinity groups

Affinity groups are voluntary groups consisting of employees
sharing a common identity. These are commonly organised along ethnic lines and
can theoretically be applied to religious groups as well. Affinity groups are
aimed at providing support networks and at promoting understanding between
different identities. Nonetheless, they need to be approached with care for two
key reasons. In the event that there is little interaction between groups, they
might actually foment religion-based segregation within the workplace, which
could have the effect of galvanising rather than dispelling prejudice. In
addition, if certain groups are declined accreditation for their beliefs, for
example due to intra-religious tensions, there could be valid charges of
religion-based discrimination.

As a result of these considerations – as well as a desire to
maintain a clear gap between religion and the workplace – some companies will
be unwilling to sanction religious affinity groups. Nonetheless, the UN Global
Compact and UN Alliance of Civilizations advocate the establishment of such
groups because they serve as:

A forum to identify common challenges faced by members of
a particular faith in the workplace

A recruitment attraction

A pool of understanding about appealing to that particular
religious group in the mass market64

Diversity
Best Practices - a think tank focusing on multicultural management in the
workplace - estimates that 90% of Fortune 500 companies have, or soon will
have, employee affinity groups.65

Texas Instruments' Diversity Network (TIDN) includes 38 groups of
employees based on individual characteristics such as gender, sexual
orientation, religion or ethnicity. The groups are designed to offer a forum in
which to share ideas, discuss challenges and offer feedback on topics such as
career development, corporate communications, community involvement, recruiting
and mentoring. See:

American Express facilitates a network of affinity groups to
promote inter-cultural awareness in the workplace. Within the network, there is
a Jewish Employee Network named CHAI, (the Hebrew word for ‘life') that has
mandated itself to increase awareness of Jewish culture and traditions, serve
as a resource and enhance networking and diversity in the workplace. See:

50 According to the Special
Representative of the Secretary-General on the issue of human rights and
transnational corporations, human rights due diligence is "a process whereby companies not
only ensure compliance with national laws but also manage the risk of human
rights harm with a view to avoiding it."
See: UN Special Representative, 7 April 2008, Protect, Respect and Remedy:
a Framework for Business and Human Rights, http://www.reports-and-materials.org/Ruggie-​report-7-Apr-2008.pdf
[Accessed on 19 September 2013].

53 Suggested actions are for guidance only. Depending
on the circumstances, these may not be relevant to all companies. The suggested
actions may be adopted and adapted in certain regions/sectors/contexts where
risks are known to be greatest. The adoption of these actions will also be
dependent on the company's existing policies, resources and procedures, as well
as the cost-benefit of undertaking these actions, which indeed might be the
root cause of the dilemma itself. The aim of the Forum is to encourage
business, trade unions, civil society and other stakeholders to engage on the
dilemma topic, to augment the suggestions and to provide additional insight and
case examples.

57 The thematic report on
religious symbols prepared by the Special Rapporteur on freedom of religion or
belief in 2006 (E/CN.4/2006/5) may provide useful guidance related to
accommodating the physical manifestation of religious beliefs. Paragraphs 36-60
are particularly applicable to the discussion raised in this dilemma.

Definition

Non-discrimination based on religion

The right to be free from religious discrimination can be found
in several international human rights instruments as it is a part of the
prohibited aspects of discrimination. Several international human rights
covenants outlaw discrimination based on race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.

"Any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation

Such other distinction, exclusion or preference which has
the effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation as may be determined by the Member concerned
after consultation with representative employers' and workers'
organisations, where such exist, and with other appropriate bodies"66

The UN Human Rights Committee has held that a
differentiation based on reasonable and objective criteria does not amount to
prohibited discrimination in the meaning of Art. 26 of the International
Covenant on Civil and Political Rights (equal protection before the law without
discrimination).

In a report concerning the impact of discrimination based on
religion or belief on the enjoyment of economic, social and cultural rights,
the UN Special Rapporteur on freedom of religion or belief has emphasised that:

States have the duty to refrain from discriminating
against individuals or groups of individuals based on their religion and
belief (obligation to respect)

they are required to prevent such discrimination,
including from non-State actors (obligation to protect)

and must take steps to ensure that, in practice, every
person in their territory enjoys all human rights without discrimination
of any kind (obligation to fulfil)67

Freedom of religious expression

International human rights law precludes restrictions on the
ability to hold, seek, and receive opinions and beliefs, including those
regarding religion. According to the International
Covenant on Civil and Political Rights (ICCPR), individuals should be able
to choose, practice and observe their religion or belief and participate in
society without discrimination. Beliefs may be manifested through worship, as
well as through teaching and observing rituals, including wearing of specific
apparel.

However, as with other fundamental human rights, there is a
balance that must be struck between individual expression and collective
welfare. International human rights law permits restrictions on the freedom to
manifest religion or belief only if limitations are prescribed by law and are
necessary to protect public safety, order, health or morals, or the fundamental
rights and freedoms of others.68

The UN Human Rights Committee – an expert body that
interprets the treaty provisions of the ICCPR (in a non-legally binding manner)
– has elaborated the contours of the right to the freedom of religion or belief
in its General
Comment 22. It is worth noting that the right is depicted as "far-reaching
and profound; it encompasses freedom of thought on all matters, personal
conviction and the commitment to religion or belief, whether manifested
individually or in community with others."69

Moreover, the "fundamental character of these freedoms is
also reflected in the fact that this provision cannot be derogated from, even
in time of public emergency."70
Restrictions may not be imposed for discriminatory purposes or applied in a
discriminatory manner.71
Article 18 protects theistic, non-theistic and atheistic beliefs, as well as
the right not to profess any religion or belief. The terms "belief"
and "religion" are to be broadly construed, including traditional
religions as well as beliefs with institutional characteristics or practices
analogous to those of traditional religions.72

Countries that present the highest risk of violations of
freedom of religion

Maplecroft's Freedom of Conscience, Expression and Religion
Index assesses restrictions on the ability to hold, seek and receive opinions
and beliefs, including those regarding religion. According to its assessment, emerging
economies such as Egypt, China, Iran and Pakistan all measure ‘extreme risk.'

The United States
Commission on International Religious Freedom also undertakes comprehensive
research and analysis of the extent to which religious freedom is protected and
promoted on a global basis. In addition to making policy recommendations, the
Commission maintains a list of Countries of Particular Concern (CPCs), where the US says there are ongoing, egregious violations of religious freedom. This Watch List
currently contains 12 states (Afghanistan, Belarus, Cuba, Egypt, Indonesia,
Laos, Russia, Somalia, Tajikistan, Turkey, India and Venezuela), five of which
are members of BRICs and the Next-11 group of emerging markets (Egypt,
Indonesia, Russia, India and Turkey).

Human rights impacts

Right to freedom of expression and opinion (ICCPR,
Article 19): Any restriction on an employee's freedom of religion or belief
is also likely to entail the undermining of this right. Given the integral
nature of religion to many people's values, world views and lifestyles –
religious restrictions are likely to impact people at a fundamental level, with
significant consequences for their ability to express themselves or to hold a
wide range of opinions. This may a particularly difficult issue to manage with
respect to proselytising religions, where followers believe themselves obliged
to be vocal in their belief and opinion.

Rights of minorities (ICCPR, Article 27): In many
cases, religion will be a key distinguishing feature of many minority groups –
or religious boundaries will at least overlap closely with ethnic and cultural
boundaries. As a result, it will often be hard to distinguish, for example,
whether a person is being discriminated against for their religious status,
their minority status, or both.

Right to freedom of association (ICCPR, Article 22):
In some environments, repression of particular religions is so severe that
it includes limits on the ability of like-minded people to associate together
in order to express or practice their faith (e.g. prayer groups, churches,
representative organisations etc.). This, in itself, is likely to undermine
people's right to freedom of association.

Right to be free from gender discrimination (ICCPR and
ICESCR Articles 2): Some religions do not treat members of different
genders on an equal footing, which may include gender segregation in the
workplace. Beyond the work setting, female adherents of particular religions
might not have equal rights pertaining to property ownership, custody of
children or inheritance.